- September 30, 2011
Change is Coming
Change is coming to domain name registrations and it could affect you. The international group that has assigned domain names for many years now, the Internet Corporation for Assigned Names and Numbers (ICANN) has created a new .xxx domain. This is the result of many years of discussion on how to segregate and distinguish adult-oriented websites from all others. Scheduled for implementation in December 2011, the .xxx domain registration means that the owner of a domain name that also is a registered trademark such as trademark.com can be associated with a new domain name trademark.xxx without any awareness, permission, or consent. Potential XXX domain registrants see obvious opportunity in being associated with familiar and famous domain names that are also registered trademarks. Needless to say, this pending change and closing deadline has given trademark and service mark owners reason to worry that their goodwill and brand recognition may be associated with adult websites. Thankfully, mark owners can take action to prevent this association.September 20, 2011On August 25, 2011, the National Labor Relations Board (NLRB) promulgated a new rule requiring nearly all private-sector employers within the NLRB’s jurisdiction, regardless of whether or not their workforces are unionized, to post a notice informing employees of their rights under the National Labor Relations Act.September 16, 2011Aerospace & Defense Newsletter - Early Application of the False Claims Act's "Implied Certification" Theory Causes Discomfort for Federal ContractorsSeptember 9, 2011Client Alert - Employee Benefits - New State Tax on Health Care Claims Affects Employer-Sponsored Health Plans
Overview of the New Law
The Michigan legislature approved a bill imposing a 1% tax on certain paid health care claims, for health care services and items beginning on or after January 1, 2012. Governor Snyder is expected to soon sign the bill into law. The tax is capped at $10,000 per individual per year, and expires January 1, 2014. The tax would apply to claims paid by an employer-sponsored group health plan, group and individual health insurance companies, stop loss insurers, and third party administrators of self-insured health plans, with limited exceptions. Insurers and third party administrators are permitted to pass along the associated tax to their employer-sponsored health plan clients.September 1, 2011For many employers, the NLRB's enforcement actions have created uncertainty when dealing with a decision to discipline or discharge an employee for inappropriate social media postings. ; A recent survey by the United States Chamber of Commerce indicates that more than 129 cases involving social media have been reviewed by the NLRB. ; Although few have been litigated so far, these cases make it clear that employers need to tread very carefully while disciplining employees for their social media posts. ; Even more troubling is the ability to draft social media policies that can survive the NLRB’s scrutiny. ; Recently, the NLRB's Division of Advice shed some light on the line between protected and unprotected activity in the context of social media by providing examples of unprotected conducted – at least in its view. ; This Client Alert highlights the NLRB's perspective on social media.September 1, 2011Through Butzel Long’s involvement with the Wage and Hour Defense Institute, the WHDI's annually updated State-by-State Wage and Hour Law Summary is now available to our clients. The Wage and Hour Defense Institute is comprised of highly talented and experienced wage and hour defense attorneys from 21 law firms across the nation. The WHDI serves as a nationwide network and meeting ground for top-tier practitioners to engage in professional development in what has become a highly nuanced area of the law, and also to become an established resource for employers on wage and hour matters. Each member was selected for membership in the WHDI based on his or her individual skills and experience representing management in the defense of wage and hour litigation. Butzel Long is proud to be one of the founding firms of the WHDI. Both Robert Boonin and Rebecca Davies are WHDI members, and Rob currently serves as its Chair-Elect. This summary of state wage and hour laws should serve as a valuable desktop resource for human resource professionals, particularly for employers with employees in multiple states.August 31, 2011The Michigan Youth Employment workplace poster has been updated. This is a required posting for any Michigan employer with minor employees; so any such employer must replace their current poster with the updated version. Nevertheless, because many employers who do not see themselves as users of child labor do end up employing minors from time to time, we suggest that all employers post the Youth Employment poster, even if they do not currently employ any minors.August 26, 2011Client Alert - Labor and Employment - New Rule Requires Employers to Notify Employees of Their Rights Under the National Labor Relations ActYesterday the National Labor Relations Board announced that as of November 14, 2011, employers across the country will be required to inform their employees that they have the right to unionize. Under its newly promulgated rule, virtually all private sector employers—both unionized and non-unionized—that are subject to the National Labor Relations Act will have to post notices and take other measures advising their employees of their rights under the Act. An employer that fails to comply with this new rule may be charged with engaging in an unfair labor practice under the NLRA.August 26, 2011Client Alert - Media - 7th Circuit Finds That A High School Athletic Association Can Enter Into Exclusive Contracts For Live StreamingIn an August 24, 2011 decision (Wisconsin Interscholastic Athletic Association v. Gannett Co., Inc., Case No. 10-2627), the Seventh Circuit Court of Appeals held that the Wisconsin association overseeing high school sports ("WIAA") can limit who streams its games live on the Internet. The court held that the WIAA has the right to enter into exclusive contracts for live streaming of its events, and that the First Amendment does not entitle other media to claim the same broadcasting rights without paying for them. The decision could have First Amendment implications for media outlets nationwide.August 19, 2011Aerospace & Defense Newsletter - “Implied Certification” of Government Contract Clauses Lead to False Claims Act Violations
AN OVERVIEW OF THE RECENT U.S. COURT OF APPEALS RULING IN UNITED STATES V. SCIENCE APPLICATIONS INTERNATIONAL CORPORATION AND WHAT IT MEANS FOR FEDERAL CONTRACTORS
Last December, amid holiday preparations and plans, the U.S. Court of Appeals for the District of Columbia Circuit decided a case that could potentially affect every federal contractor. The ruling affirmatively applies the “implied certification” rule giving federal contractors another serious complication in the government contracting process, with no clear or uniform standards on the specific issue. It highlights the importance of federal contractors having robust, effective contractor compliance systems to minimize the risk of severe penalties. The case is United States v. Science Applications International Corporation, 626 F.3d 1257 (D.C. Cir. 2010), and its holding has created a great deal of buzz within the government contracting community. It spread anything but holiday cheer.August 15, 2011For many employers, the NLRB's enforcement actions have created uncertainty when dealing with a decision to discipline or discharge an employee for inappropriate social media postings. ; A recent survey by the United States Chamber of Commerce indicates that more than 129 cases involving social media have been reviewed by the NLRB. ; Although few have been litigated so far, these cases make it clear that employers need to tread very carefully while disciplining employees for their social media posts. ; Even more troubling is the ability to draft social media policies that can survive the NLRB’s scrutiny. ; Recently, the NLRB's Division of Advice shed some light on the line between protected and unprotected activity in the context of social media by providing examples of unprotected conducted – at least in its view. ; This Client Alert highlights the NLRB's perspective on social media.August 9, 2011Client Alert: Labor and Employment - Michigan Supreme Court Limits Employer Liability for Employee’s Intentional, Unforeseeable Quid Pro Quo Sexual HarassmentIn a significant change in Michigan sexual harassment law, on July 29, 2011 the Michigan Supreme Court issued a 4-3 decision in Hamed v. Wayne County et al., which overruled its 1996 decision of Champion v. Nation Wide Security Inc. Champion had imposed strict liability on employers under Michigan's Elliott-Larsen Civil Rights Act (ELCRA) for the intentional, criminal sexual acts of its employees. In Hamed, the Court expressly overruled Champion and changed law which had been in place for the last 15 years. Hamed holds that an employer's liability for criminal acts of an employee under the ELCRA is now limited to those acts the employer could have reasonably foreseen.August 3, 2011Client Alert - Labor and Employment - FCRA Amendments Expand Adverse Action Notice Requirements for Employers Using Credit ScoresThe Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act") amendments to the Fair Credit Reporting Act ("FCRA"), which became effective on July 21, 2011, affects any person (including an employer) that uses credit scores to take an adverse action against a consumer. ; These amendments potentially expand an employer's notice requirement obligations.August 1, 2011Automation Alley Newsletter - Time to Review your Employment Agreements: “Expired” is not the same as “Terminated” when it comes to enforcing restrictive covenantsJuly 27, 2011Client Alert - Trade Secret and Non-Compete - Time to Review your Employment Agreements: “Expired” is not the same as “Terminated” when it comes to enforcing restrictive covenantsEmployment agreements that contain both restrictive covenants and specific lengths or terms might pose enforcement risks if the contract simply runs its course and "expires". That's the conclusion of the Michigan Court of Appeals in the recent unpublished decision in VHC, P.C. v. Elshaarawy, M.D., Docket No. 297625 (Mich. App. June 16, 2011).July 21, 2011The National Labor Relations Board ("NLRB" or "Board") recently expanded the right of workers to engage in organizing activity in public areas of their worksite. In a 3-1 decision, the NLRB determined that a private property owner violated the National Labor Relations Act by prohibiting a contractors’ off-duty employees from handbilling on the owner’s premises. New York, New York Hotel and Casino, 356 N.L.R.B. No. 119 (2011).July 20, 2011Client Alert - Investment Management - SEC Adopts Inflation Adjusted Definition of “Qualified Client” Under The Investment Advisers ActOn July 12, 2011, the Securities and Exchange Commission (the "SEC"), issued Release No. IA-3236 (7/12/11) (the "Order"), raising the dollar amount thresholds in Rule 205-3 under the Investment Advisers Act of 1940 (the "Advisers Act") for purposes of the rule’s exemption under the Advisers Act permitting the payment of performance fees to registered investment advisers by "qualified clients."July 11, 2011Client Alert - Taxation and Succession Planning - FBAR (Foreign Bank Account Reports) Amnesty Program Allows Taxpayers to Avoid Criminal and Severe Civil PenaltiesIn February 2011 the Internal Revenue Service announced a second voluntary disclosure initiative to allow taxpayers with undisclosed offshore bank, securities and other financial accounts to comply with US income tax and other offshore account reporting rules for prior years and avoid criminal penalties with reduced civil penalties. In addition to other persons, these rules apply to citizens and U.S. resident aliens (e.g., U.S. resident aliens that have maintained accounts in their home country).July 5, 2011Jump to PageClient Alert - Investment Management - SEC Adopts Significant Implementing Rules For Investment Advisers Under Dodd-Frank Act
On June 22, 2011, the Securities and Exchange Commission (the "SEC") adopted rules, rule amendments and amendments to Form ADV (the "New Rules") under the Investment Advisers Act of 1940 (the "Advisers Act") to implement Title IV of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").
The New Rules were not adopted without some controversy. Two of the five SEC Commissioners voted against adopting new rules and amendments to register hedge fund and private fund advisers, and to impose reporting requirements on funds exempt from registration, arguing that the regulatory burdens of the new reporting requirements on venture capital advisers who are exempt from registration are too heavy, are contrary to congressional intent and would negatively impact capital formation. The SEC Commissioners unanimously voted to adopt rules to implement registration exemptions for venture capital fund advisers, advisers to private funds with less than $100 million in assets under management ("AUM") in the United States, and certain foreign advisers. The SEC Commissioners also unanimously voted to adopt a new rule defining "family offices" that are exempt from registration under the Advisers Act.June 3, 2011
In a recent decision under the Open Meetings Act (“OMA”), the Michigan Court of Appeals held that a public body’s minutes did not adequately reflect the decision made at a meeting, thus violating the OMA.
In Citizens for Public Accountability v. Lawrence, Case No. 292311 (May 26, 2011), the township was in litigation with a developer. They reached a settlement, but before the township approved it, several public meetings were held for the purpose of considering it. The township held a special meeting on July 24, 2008 during which it approved the settlement agreement by adopting a resolution. Subsequently, at another meeting, they approved the minutes of the July 24 meeting and also approved the resolution.